| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : FORD -v- SHIRE OF KALAMUNDA [2005] WADC 97 CORAM : WISBEY DCJ HEARD : 18 & 19 JANUARY 2005 DELIVERED : 20 MAY 2005 FILE NO/S : CIV 2893 of 2002 BETWEEN : ANITA SHARON FORD Plaintiff
AND
SHIRE OF KALAMUNDA
Defendant
Catchwords: Negligence - Duty of care - Injury to cyclist when front wheel of bicycle hit kerb - Kerb in disrepair - Causation - Contributory negligence
Legislation: Local Government Act 1995
Occupiers Liability Act 1985
Result: Claim dismissed
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Representation:
Counsel:
Plaintiff : Mr I Marshall
Defendant : Mr J Eller
Solicitors:
Plaintiff : D'Angelo & Partners
Defendant : John Eller
Case(s) referred to in judgment(s):
Brodie v Singleton Shire Council (2001) 206 CLR 512
Case(s) also cited:
Duval v Pederson [2003] WADC 197
Hagger v City of Fremantle [2003] WADC 206
Leichhardt Municipal Council v Green [2004] NSWCA 139
Suvaal v Cessnock City Council [2003] HCA 41
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
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1 WISBEY DCJ: Anita Sharon Ford, born on 25 August 1970, was injured on 30 April 2002 when she fell from the bicycle she was riding along Cyril Road, High Wycombe. She brings this action against the Shire of Kalamunda, the local government for the district in which Cyril Road is situated. Both liability and quantum are in issue.
2 The claim is formulated in negligence and breach of statutory duty, although only the cause of action in negligence was pursued at trial. 3 The statement of claim relevantly alleges that the plaintiff was riding her bicycle along Cyril Road in dark conditions at about 8.00 pm. A motor car approached travelling in the same direction and to the rear of the plaintiff, and as a consequence she moved slightly to the lefthand side and "in doing so, the front wheel of her bicycle suddenly hit the damaged kerb around Cyril Road, and she was flung off the bicycle". It is alleged that the defendant was negligent in failing to inspect and properly maintain the kerbing, and failing to warn the plaintiff of its state of disrepair.
The evidence
Anita Sharon Ford 4 The plaintiff who was married on 18 September 1993 has two sons born 21 April 1992 and 20 September 1994 respectively. She came to Western Australia from New Zealand in 1984 and attended Applecross Senior High School for a short period, leaving halfway through Year 10. The plaintiff then worked in a delicatessen and a yoghurt bar until 1986 when she was offered a traineeship as an accounts clerk. She worked in that capacity for approximately six years, had her first child, and then obtained employment as a receptionist at St John of God Hospital in about 1994. Thereafter she transferred to hotel reception and working as a residential aide with disabled people. 5 In about 2001/2002 the plaintiff undertook a beauty therapist course where she met Ms Billy Wilkinson, the proprietor of several hairdressing salons, who agreed to take her in a hairdressing apprenticeship. Arrangements were made for the plaintiff to commence the apprenticeship in June 2002. That necessitated working in a salon and attending TAFE. The plaintiff commenced the TAFE component on about 20 July 2002 which involved attending TAFE one day a week from 8.00 am until 4.00 pm, for approximately two to two and a half hours of theory and five hours practical component. At the same time she was working full-time at one of Ms Wilkinson's businesses, Caroline's Hair Fashions. She
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continued in that work until April 2003 when she resigned because of the difficulties she was experiencing. 6 In July 2003 she commenced permanent part-time employment as a goods inwards receiver at Harvey Norman earning $320 net per week. The job involved inputting stock received data into the computer system. She stayed in that employment for eight months and since resigning has undertaken five 6 hour casual shifts at a delicatessen. 7 As at trial she had an appointment to be interviewed for a part-time receptionist position three days per week for 12 to 18 hours. She was only seeking part-time employment because she has separated from her husband and only wants to work during school hours. She acknowledged that she had the capacity to work but stated that she was unable to do hairdressing, which was her primary interest. 8 The plaintiff owned a Raleigh mountain bike and for about six months prior to the accident cycled around the bridges with her brother-in-law Tim Frances three times a week. On the night of 30 April 2002 she was cycling with her brother-in-law in the High Wycombe area, and at the material time they were cycling in Cyril Road towards Kalamunda Road. As they were proceeding along Cyril Road, Mr Frances was forward of her. She stated: "I came round the bend to go into Cyril Road and I was riding straight up towards Kalamunda Road. I heard a car. It didn't scare me. I heard a car, so I instinctively moved to my left and that's when my bike got caught – stuck in the kerb. It just came to a complete stop and I went flying off … there wasn't a lot of lighting. I had lights on my bike but there was quite a big gap between the light poles on Cyril Road". 9 She indicated that she had two headlights operating on her bicycle and was not going very fast. The plaintiff landed on the footpath and Mr Frances came to her assistance. Her husband was summonsed, and she was taken to the Swan Districts Hospital for treatment. 10 Approximately a month after the accident the plaintiff took seven photographs showing the kerbing where she stated the bicycle came to a stop (Exhibit 2). She stated that the kerbing was repaired about three months prior to trial, and tendered three photographs depicting the repair work (Exhibit 3).
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11 As a result of the fall the plaintiff sustained a fracture of the radial head of the left upper limb at the elbow, and some bruises and abrasions. Additionally she appears to have sustained soft tissue injuries to the lefthand side of her chest and shoulder which area was painful for two or three months.
12 The plaintiff was transferred from Swan Districts Hospital to the Royal Perth Hospital orthopaedic department where she remained for about six hours during which time the left arm was placed in a brace. Thereafter she attended the orthopaedic clinic on a fortnightly basis. The brace or back slab, which was applied to the left upper limb from the shoulder to the wrist, remained in situ for approximately eight weeks. During that time the plaintiff was unable to engage in much physical activity. She required and obtained assistance from her mother and three sisters who prepared her children for school, made their lunches, took them to school, and performed other domestic duties such as washing, cleaning, and preparing meals. She stated that assistance was total for about nine weeks post-accident and then for a couple of weeks thereafter at a reduced rate. The plaintiff's mother took her to all her medical appointments as she was unable to drive until about the beginning of September 2002. The plaintiff's estimate was that for the first nine weeks her mother and sisters probably assisted for two to three hours a day, although there would be at least one of the family members with her most of the day. 13 About six weeks post-accident the plaintiff commenced physiotherapy three times a week for six weeks. She underwent an open release and capsulectomy of the elbow on 2 April 2003 and was hospitalised for five days following which she required further physiotherapy. She was readmitted on 6 May 2003 for a manipulation under general anaesthetic and was hospitalised for three days. Thereafter she underwent further physiotherapy and was required to have a brace applied to straighten the arm. She experienced considerable pain following the various procedures. It appears that she took paid leave from her hairdressing apprenticeship at the time of the various procedures, but finally determined that the difficulty in performing the work was such that it was inappropriate to continue. 14 The plaintiff claims that presently she has constant aching from the biceps to the hand, and a lack of strength in the left arm. Fortunately she is right hand dominant. She claimed that she was no longer able to engage in sporting activities with her children, or to walk her dog. The plaintiff stated that she required to take Mersyndol four to five nights a
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week to enable her to sleep. She claimed to have lost confidence because of the injury, and considered that she was not able to properly care for herself. 15 The plaintiff referred to the two scars on the elbow 8 to 9 cm in length which were of cosmetic consequence dictating appropriate selection of clothing. The plaintiff's mother now lives with her following the breakdown of the plaintiff's marriage, and necessarily assists the plaintiff with domestic activities. 16 In cross-examination the plaintiff was referred to a statutory declaration made by her on 1 August 2002 in which she relevantly said: "3. On 30.4.2002 at around 8.00 pm I was riding my bicycle along Cyril Road, High Wycombe, towards Kalamunda Road. 4. It was dark and some of the street lights were not operating. 5. A car approached from behind me and I moved slightly to my lefthand side. 6. The front wheel of my bicycle suddenly hit the kerb and I was flung off the machine. 7. I was riding at a moderate pace at the time. 8. I landed on my left side on the footpath. 9. I later saw that the kerb where I fell was damaged." 17 She stated during cross-examination that immediately after she had fallen she observed that the kerb was damaged, and when it was put to her that having regard to the agony she was experiencing from her elbow it was unlikely that she would have made that observation, she stated that she was absolutely sure as "that's where my bike was stuck". 18 When cross-examined as to how and why the bicycle hit the kerb the plaintiff stated that when she heard a car behind her she turned her head to the right and moved her bike to the left. She only turned her head enough to see the oncoming lights, and almost straightaway hit the kerb. She claimed that if the kerbing had not been damaged the bicycle would have mounted the kerb instead of getting stuck. The plaintiff stated that she fell sideways from the bike.
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19 When asked why she left the job with Harvey Norman the plaintiff stated that it was because her marriage had broken down and she needed to be able to take her children to school and just be a mother. She was at the date of trial in receipt of a single parent pension of $652 a fortnight. She stated that it was her desire to become a qualified hairdresser as that would have enabled her to work from home. She claimed that she had not resumed the apprenticeship on medical advice.
20 When further questioned about the accident the plaintiff stated that: 21 She confirmed that when her husband arrived at the accident scene she just told him that she had fallen off her bike. 22 When addressing the job for which she had made application, the plaintiff stated that it had originally been advertised as four days per week from 8.30 am until 4.00 pm and she was then not interested because she was unable to make such a commitment due to her desire to take her children to and from school. Shortly before trial she had been telephoned and told that she would be able to be accommodated with part-time work.
David John Linfoot 23 Mr Linfoot, a 52 year old bus driver, resides at 42 Cyril Road, High Wycombe, and has done so for approximately six years. His house is on the lefthand side of Cyril Road looking towards Kalamunda Road. He stated that between the front of his property and Cyril Road there was a footpath-cycleway, and kerbing. The footpath which was contiguous with the front boundary of his property was in 1999 shifted so as to be contiguous with the kerb. 24 Mr Linfoot stated that the kerbing in front of his house was in disrepair with pieces broken away from it. He stated that about three months after the relocation of the footpath he rang the defendant to complain about its condition and incidentally mentioned the state of the kerbing. The defendant attended to the footpath but not the kerbing.
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When shown the photographs (Exhibit 1) he stated that the kerbing depicted therein looked similar to the kerbing at the front of his property. He stated that new kerbing was constructed in about September 2004. He had no idea to whom he had spoken when complaining to the defendant about the footpath, save to say that it was someone in the engineering department. His estimate was that the damaged section of kerbing was about a metre long, although a considerable amount of the kerbing in Cyril Road was in poor condition. He agreed that various people regularly drove vehicles over the kerbing.
Bryan Robert Sheridan 25 Mr Sheridan, Mr Linfoot's next door neighbour, resides at 40 Cyril Road, High Wycombe, and has done so since about 1967. In 1967 the road did not have any kerbing, but it was later constructed. In the late 1990's there was an excavation at the front of his property for deep sewerage facilities necessitating new kerbing which started to crumble a short time after replacement. As a consequence he rang the defendant asking to speak to the Shire engineer. When he was advised the engineer was not available he left a message that the kerbing at the front of 40 Cyril Road was crumbling and in need of repair. This appeared to have been before the plaintiff's accident. He stated that the kerbing was not repaired until the road was resurfaced late in 2004. 26 In cross-examination he stated that the deep sewerage work was done in late 1999 or early 2000 and that it did not appear to be being done by the Shire. It was shortly thereafter that the kerbing began crumbling, causing him to leave the message for the defendant's engineer.
Billy Pamela Wilkinson 27 Ms Wilkinson is the proprietor of several hairdressing salons, having been in the industry for over 40 years. She stated that the plaintiff came to work for her as a beauty therapist at her salon "Bojangles". She stated that in early 2002 the plaintiff asked to be taken on as an apprentice hairdresser, and she agreed. She agreed that the apprenticeship was registered on 24 July 2002 and that because of her injuries the plaintiff experienced difficulty lifting her arms above the shoulders. 28 Ms Wilkinson stated that the hairdressing apprenticeship was of a four year duration, and that the plaintiff was earning $437 gross or $360 net per week in her first year. Ms Wilkinson considered the plaintiff had the capacity to become a hairdresser. She stated that the award rate for a qualified hairdresser was $645.60 gross for a 38 hour week, and the
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hourly rate above 38 was $16.99. Competent hairdressers had the capacity to earn up to $1,000 a week. 29 Following the plaintiff's operative treatment in April and May 2003 Ms Wilkinson observed that she was unable to attend to many tasks, and as a result of a discussion between them it was agreed that the apprenticeship be terminated.
Christopher Peter Hammersley 30 Dr Hammersley, a consultant occupational physician, saw the plaintiff on 18 August 2003 and 2 November 2004. His reports dealing with each consultation and bearing the consultation date, were received in evidence (Exhibit 7.1 and 7.2). In evidence he expressed the view that the plaintiff's condition had improved between the two consultations. 31 In his report of 18 August 2003 (Exhibit 7.1) Dr Hammersley set out the vocational and medical history. He stated that examination revealed the plaintiff to use her arm fairly naturally although lacking normal elbow flexion. He considered that she required an MR scan of the left elbow and pain management, although he did not see the need for passive physiotherapy. He stated that there was no evidence of degeneration. He supported her view that she was not then suited to hairdressing activities. He felt that the primary source of her pain was the anterior aspect of the elbow joint. Clinical examination did not reveal any wasting above or below the left elbow, but there was a 30 degree extension deficit. 32 Dr Hammersley reported that the plaintiff would experience a reduction in pain over time, particularly if assisted by a pain management specialist, but noted that the range of left elbow movement was not likely to return to normal. He anticipated degenerative arthritis developing in the radio humeral joint with increased discomfort, irritability and reduction of movement in pronation/supernation. He assessed the permanent loss of efficient use of the left arm at the elbow of the order of 6 per cent. The report suggests that the prognosis was largely dependent upon the history provided. 33 In the report dated 2 November 2004 following an examination that day, Dr Hamersley recorded the plaintiff's complaint of discomfort and aching above and below the left elbow; stiffness and limitation of elbow movement; decreased sensation over the back of the elbow; and the cosmetic consequences. He reported that his examination demonstrated improvement in the range of elbow movement. He felt that there was a likelihood for the need for future arthroscopic removal of loose bodies
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from time to time. He considered that there was a degree of disability at the time of his consultation due to a loss of full range of movement and the plaintiff's desire to avoid painful end range click. He felt that there was a reduction in her capacity for work which necessitated reaching, lifting, carrying, and sustained use of long handled tools. As a result of elbow pain she required medication several nights a week, and required strong medication to be able to deal with hairdressing and other pre-injury activities. He speculated that her disability might increase due to degenerative change 10 years or so in the future. His view was that vocational activities should be chosen which excluded a significant component of reaching, carrying or lifting. He assessed the permanent loss of efficient use of the left arm at the elbow as 10 per cent. 34 When asked specifically in evidence to address the question of her capacity to undertake hairdressing activities he seemed to say that because of the arm limitations she would not be economically competitive, but I did not understand him to exclude the capacity to undertake hairdressing on the part-time basis contemplated by her. He described her main symptoms as a dull aching in the arm which increased with activity, stiffness of elbow movement, and sudden increase in pain on extended elbow movement. He considered that it was inevitable that the plaintiff would undergo arthroscopies in the future, and supported her use of Mersyndol.
John Paul Ford 35 Mr Ford is married to but separated from the plaintiff, and works in Wiluna as a charge up truck driver. He gave evidence that following the accident the plaintiff, with whom he was then living, had a lot of trouble performing most household duties, and was unable to engage in sporting activities with the children. He confirmed that her mother and sisters assisted her. He stated that at the material time he was working for a chemical firm in Welshpool and that he did not cease work but tried to get off early each day so that he could pick up the children from school. He stated that his mother-in-law and sisters-in-law would call during the day to do the cleaning and prepare the evening meal. He assisted the plaintiff with showering at night. He assessed that it was 10 to 12 weeks post-accident before the plaintiff was able to make any domestic contribution. He stated that she suffered a loss of confidence, and required assistance with personal care. She appeared to be in a lot of pain and was taking Mersyndol and Panadeine Forte.
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36 Mr Ford stated that Mr Frances informed him of the accident and that he went to the scene where he found the plaintiff and her bicycle lying on the footpath. He took her to Swan Districts Hospital. He confirmed that the plaintiff required considerable assistance in the 10 to 12 weeks following the accident and further following the two subsequent hospital admissions in something of the order of eight weeks.
37 He stated that in April 2004 when they separated, the plaintiff was doing most of her normal duties, but was still limited with activities such as carrying and the heavier type housework. 38 In cross-examination he stated that when he got to the accident scene the plaintiff's bicycle was half on the footpath with the front wheel protruding on to the road. The plaintiff said to him "I've come off the pushbike" and appeared to be in considerable pain. His recollection was that the lighting in the area was very poor.
Sharon Brunt 39 Ms Brunt, the plaintiff's 61 year old mother, is employed as a house supervisor for the ACTIV Foundation doing shift work from 3.00 pm until 9.00 am. She stated that for three to three and a half months immediately post-accident she did virtually all of the plaintiff's household duties such as washing, ironing, cleaning, shopping and cooking. In addition she drove the plaintiff to medical appointments. She also assisted the plaintiff at the time of the hospital admissions in April/May 2003. Her other daughters also assisted. 40 When asked to estimate the time that her three daughters and herself were engaged in assisting the plaintiff she stated it was of the order of 10 to 14 hours a day. She estimated that they provided something of the order of four months intensive care following the hospitalisation in 2003. 41 Ms Brunt has been living with the plaintiff since May 2004 and stated that she and the plaintiff share the household chores although she would do such activities as pegging the clothes on the line. She indicated that the plaintiff could do pretty well anything, although at a cost of pain.
Chong Ngai Chew 42 Dr Chew, a chartered engineer, was engaged by the plaintiff's solicitors to prepare a report on the circumstances of the accident, and the report dated 14 August 2003 was received in evidence (Exhibit 10). The report was based inter alia on the plaintiff's statutory declaration dated 1 August 2002 and the statement of claim dated 8 January 2003 and
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approached the subject on the basis of instructions that the accident occurred as: "A car approached the plaintiff from behind. She moved slightly to her lefthand side. The front wheel of her bicycle suddenly hit the kerb and she was flung off. She landed on her left side on the footpath. The plaintiff later saw the kerb where she fell was damaged." 43 It does not appear that it was ever suggested to Mr Chew that the account did not accurately reflect the circumstances of the accident and indeed it is in accordance with the pleading. 44 Mr Chew reported that when the bicycle light was positioned as the plaintiff indicated it was on the night of the accident, the illumination of the ground in front of the bicycle was dim. Dr Chew reported that when he inspected the kerbing where the accident allegedly occurred on the north west edge of Cyril Road on 6 August 2003 he observed cracking and chipping of the kerb outside the boundary between houses 40 and 42. Where the kerbing was undamaged, the road edge was found to be 40 mm high and angled up to the footpath at an angle of 8 degrees. The length of the sloping edge of the kerb was 305 mm, and the length of the damaged section was approximately a metre. Chipping had resulted in the damaged kerb losing its concrete material by up to 100 mm measured from its original edge and the kerb presenting a rough and uneven edge with an increased road end height of 68 mm at the maximum point. There was no street light within 50 metres of either end of the damaged section. 45 Dr Chew rode the plaintiff's bicycle along Cyril Road between 6.45 and 7.00 pm on 12 August 2003 with the light on the setting described by the plaintiff and found the road surface in front of the bike and the damaged kerb difficult to see. When the bicycle light was tilted down, however, so that the beam struck the road surface at a point 3 to 5 metres in front of the bicycle the position was otherwise. 46 Dr Chew reported that the damaged kerb constituted a substantially higher risk of causing a bicycle rider to lose control of his bicycle should the front wheel of the bicycle strike it, because it presented a rough and uneven edge which might impose uneven side forces on the wheel, and the road end height had been increased by up to 70 per cent making it less likely that the bicycle wheel would ride up the kerb. 47 Dr Chew confirmed the views expressed in his report in evidence.
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48 When it was put to Dr Chew in cross-examination that if a bike struck the undamaged kerb the likelihood was that the rider would be dislodged, he stated that it would depend on how the bike met the kerb. If the wheel met the kerb reasonably parallel side on, there was a chance that an experienced bike rider could prevent a fall, and if the wheel struck the kerb at a fairly large angle it might mount the kerb. He agreed, however, that a bicycle striking a 40 mm kerb edge could cause the rider to be dislodged.
David Robert James Gill 49 Mr Gill, an orthopaedic surgeon specialising in shoulder, elbow, hand, arthroscopic and joint replacement surgery, initially saw the plaintiff at Royal Perth Hospital on 1 May 2002 and was thereafter responsible for her treatment. His reports of 13 January 2003 and 10 December 2004 were received in evidence (Exhibit 18.1 and 18.2). 50 In the report of 13 January 2003 (Exhibit 18.1) Mr Gill recorded that he saw the plaintiff at the outpatient department at Royal Perth Hospital on 1 May 2002 when she was complaining of intense pain in the whole of the left upper limb, particularly at the elbow. Radiological examination demonstrated a fracture of the left radial head and neck, and as a consequence the elbow was splintered and remained so until 29 May 2002 when mobilisation followed by physiotherapy was commenced due to persistent elbow stiffness. 51 When he saw the plaintiff on 7 August 2002 Mr Gill observed poor elbow movement and directed the application of buckle and flexion braces. On 2 October 2002 there was still restriction of elbow movement, particularly flexion, and the plaintiff was advised to consider surgical treatment. 52 In the report of 10 December 2004 (Exhibit 18.2) which was subsequent to the elbow arthroscopy capsular release and ulnar nerve decompression, and manipulation under anaesthetic, Mr Gill recorded that the plaintiff had persistent elbow discomfort with episodic locking, although the range of motion had improved. Examination demonstrated a small elbow effusion, the range of motion being 17 degrees to 120 degrees, with full prosupination. There was scarring, tenderness about the medial and lateral joint line, and decreased light touch sensation. 53 A CT arthrogram carried out on 8 December 2004 demonstrated cartilaginous loss on the ulna/humeral articulation and within the radial head, suggestive of secondary degenerative changes. Mr Gill suggested
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that the plaintiff would benefit from an elbow arthroscopy and removal of any loose or irregular fragments to reduce the episodic locking of the elbow and pain. He reported that simple analgesia may be required for comfort. 54 In evidence Mr Gill referred to the fracture to the left radial head and neck which he described as a fracture that could be associated with articular problems and joint stiffness. He observed that there was union of the fracture but that the plaintiff was left with ongoing stiffness requiring physiotherapy, splints, and subsequently surgery, to improve extension of the arm. 55 He observed from the hospital notes that the plaintiff underwent open release, capsulectomy and transposition of the ulnar nerve on 2 April 2003, and manipulation of the elbow under general anaesthetic on 6 May 2003 in an attempt to improve the range of motion. He noted degenerative arthritis in the elbow, which he described as progressive. 56 He confirmed the view expressed in his second report that it would be prudent to undertake arthroscopic surgery, the cost of which he estimated at approximately $5,500, but was unable to say whether following that procedure there would be any future surgery requirement. He considered that it was desirable the plaintiff be seen by a pain specialist to try and rationalise her intake of analgesic medication, noting that in a degenerative joint, symptoms were activity related. He stated: "In my experience patients who have degenerative disease of their elbow that's post-traumatic, their levels of pain tend to fluctuate depending on use and activity. The elbow will tend to stiffen with the passage of time in the medium to long term. What level of symptoms are experienced by the patient often is dependent upon what they choose to use the arm for." 57 He agreed that persons in the position of the plaintiff learn to accommodate their limitations over time.
Mahesh Singh 58 The defendant called Mr Singh, its manager of engineering services responsible for the maintenance and construction of roads, footpaths, and drainage works. He stated that the total roadworks programme for the defendant, which included maintenance and capital works, was of the order of $6 million a year, there being approximately 500 km of road within the Shire.
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59 He stated that for routine maintenance of roads, inspections were carried out by sweeper truck operators, each residential street being swept every two to three months. The sweeper truck drivers submitted daily reports concerning road defects. The sweeping programme records demonstrated that Cyril Road was swept on 20 March 2002 and at that time it was recorded that the edge of the bitumen needed repair.
60 Shire records demonstrated that apart from routine maintenance, no major work was carried out to Cyril Road in the years prior to April 2002. There was a record of the Water Corporation carrying out in fill sewerage and subsequent rectification of defects to the footpath kerbing and asphalt in Cyril Road, in about August 2001. 61 Mr Singh stated that the defendant worked on a five year budgetary road construction and maintenance programme, and as a consequence Cyril Road was due for resurfacing in 2003/4. In fact work was carried out in 2004 including resurfacing of the road and kerb repair and replacement. The defendant had no recorded complaints of kerbing disrepair in the vicinity of 40 to 42 Cyril Road prior to April 2002. 62 As a result of being informed of the plaintiff's accident, Mr Singh visited the scene some months subsequent thereto, but repairs to the kerb were not immediately performed because: "Its not considered dangerous. There are many streets and its quite common for the edge of the kerb to break out because the thickness of that kerb is usually lower at the edge and when the vehicles mount on it they break off and they do not interfere with any function of the road and there are many streets. If we start doing that repairing, it will be the cost which I don't think the Shire can afford." 63 He estimated that the Cyril Road kerbing and road surface was 18 to 20 years old as at April 2002. He stated that the defendant's budget for road repairs and maintenance was of the order of $1 million per annum.
Findings of fact 64 I am not satisfied on all of the evidence that the front wheel of the plaintiff's bicycle came into contact with the damaged section of the kerb, and believe that since the accident the plaintiff has allowed herself to believe that to be the position, because it suits her purposes.
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65 In her statutory declaration made on 1 August 2002 (Exhibit 6) she stated that after becoming aware of the approach of the following vehicle she moved to her lefthand side and "the front wheel of my bicycle suddenly hit the kerb and I was flung off the machine … . I later saw that the kerb where I fell was damaged". It is probable that statement accurately sets out the situation.
66 The plaintiff's evidence at trial was that her bicycle "got caught – stuck in the kerb" before she fell from it; and she claimed that she observed the damaged kerb immediately after her fall and stated "that's where my bike was stuck". That seems improbable; is inconsistent with the statement in the statutory declaration; and inconsistent with what she told her husband on his arrival. 67 She asserted that the front wheel of her bicycle was stuck in the kerb when her husband arrived, but his evidence did not confirm that to be the case. 68 The plaintiff's brother-in-law, Tim Francis, who was also at the scene, did not give evidence. 69 Had it been the case that the front wheel of the plaintiff's bicycle hit the damaged section of the kerb, I would not have been satisfied that was of consequence. The probability is that unexpected contact of the front wheel of the bicycle with any part of the kerb, damaged or undamaged, in the circumstances described by the plaintiff, would have resulted in her being dislodged from the bicycle. 70 Even if the accident occurred in the manner urged by the plaintiff at trial, there would still be the issue of whether the defendant was in breach of any duty to her. 71 It is common knowledge that kerbing is constructed lateral to the made road surface to facilitate drainage and to protect the lateral surface from deterioration. Its shape and dimensions vary significantly from locality to locality. Its purpose is not to prevent vehicles leaving the road surface. It cannot be assumed that persons making proper use of the road and taking reasonable care for their own safety will allow their vehicles to come into contact with the kerbing. 72 The risk of an accident and injury occurring in the circumstances postulated by the plaintiff is remote.
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73 In discussing the duty of local authorities in respect to users of roadworks undertaken by them, their Honours Gaudron, McHugh and Gummow JJ stated in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577:
"The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficultly and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case." 74 Their Honours went on to say at p 580 that: (i) the discharge of the duty involves the taking by the Authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm; (ii) a proper starting point may be the proposition that the persons using the road will themselves take ordinary care; (iii) not all failures to repair will create risks to the users of a road, or at least not risks which would as a matter of the reasonably foreseeable, pose a risk of injury; (iv) the formulation of the duty of care includes consideration of competing or conflicting responsibilities of the Authority. 75 When one has regard to the remoteness of risk of injury in the circumstances postulated by the plaintiff, and the general responsibility of the defendant regarding the maintenance of roads under its control as identified in the evidence of Mr Singh, I do not accept that its failure to repair the kerbing constituted a breach of duty to users of the road. 76 Had I been able to conclude that the defendant was in breach of its duty to the plaintiff it would have been necessary to hold that she was
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contributorily negligent to a significant extent. The headlight on the bicycle was not set appropriately; she was not keeping a proper look out; and she failed to exercise due care in the management of the bicycle. In those circumstances it would have been necessary to reduce her entitlement by 70 per cent to reflect the degree of negligence attributable to her.
Provisional assessment of damages
Loss of amenities 77 As a result of the fall the plaintiff sustained a significant fracture to the left elbow and some lesser soft tissue injuries and bruising. When conservative treatment of the fracture was unsuccessful operative procedures were undertaken. Physiotherapy was required for a period post-accident and subsequent to surgery. The plaintiff had significant physical limitations and pain both in the immediate period post-accident and following surgery. Although she has made a reasonable recovery she has the legacy of articular problems and joint stiffness which impact upon normal function of the limb. There is a likelihood of future degeneration requiring further medical management. Ongoing symptoms require analgesic medication. The plaintiff has also been left with a cosmetic disability which I did not regard as particularly unsightly. 78 I would allow $32,500 for loss of amenities.
Past economic loss 79 The plaintiff claimed at $360 per week covering the period of nine weeks when she was unable to work as a result of the surgery. The amount of $3,240 claimed is reasonable. I would allow the sum of $183 being interest on past loss at 3 per cent as claimed.
Future loss of capacity 80 It is properly conceded that it is not possible to make an arithmetical calculation. Although the plaintiff is fit for a wide range of vocational activity she would be unable to undertake full-time hairdressing which is her occupation of choice. I believe, however, that with time she could do part-time hairdressing consistent with her maternal responsibilities and her desire. It is also possible that she may be disadvantaged to a small extent in the labour market. I would allow $35,000 for loss of capacity.
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Past gratuitous services
81 The plaintiff claims for the immediate post-accident and operation periods she required 6 hours assistance per day for a total of 17 weeks at $15 per hour. I am satisfied with the period claimed, and the rate, but having regard to the fact that the allowance is directed to the plaintiff's personal needs I believe 4 hours per day is appropriate. I do not accept that there is a requirement for much ongoing assistance. 82 I would allow $12,000 by way of gratuitous services generally and interest.
Future medical and pharmaceutical requirements 83 The plaintiff claimed $7,500 to cover future medical and pharmaceutical expenses which I regard as modest. I would allow $8,500.
Past and future travelling 84 I would allow $1,000 to cover this head of damage.
Special damages 85 These are agreed at $304.30.
Summary
Loss of amenities $32,500.00 Past economic loss $ 3,240.00 Interest on past loss $ 183.00 Loss of capacity $35,000.00 Past gratuitous services $12,000.00 Future medical $ 8,500.00 Past and future travelling $ 1,000.00 Agreed special damages $ 304.30 Total $92,727.30 86 For the reasons which I have given, however, the claim is dismissed.
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